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JGM, Solicitor
Category: Scots Law
Satisfied Customers: 13201
Experience:  30 years as a practising solicitor.
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My husband and I married in 2001. We bought our current home

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My husband and I married in 2001. We bought our current home in 2004 (in Scotland), my husband moved out in 2013. The house and mortgage are still in both our names. I have paid the mortgage and all household bills from my personal bank account since we moved in, in 2004, and have continued to do so since my husband moved out. I was the main income earner during our marriage. Since he moved out, my husband has not given me any 'child support', or any other money. When he moved out, I took over responsibility for all 'family' debts, apart from my husband's car, and these amounted to well over £40,000, not including the mortgage. I have also had to pay for extensive repairs on the house over the last couple of years, as the house was very run down and is still not in great shape. As far as I can tell, having checked with the land registry and local market trends, etc, the house is worth less now than when we moved in and has virtually no equity in it (we paid £249,000 for it, I understand it is now worth around £230,000, and we have an outstanding mortgage of £170,000). I put £46,000 from the sale of my previous home into the purchase of this house when we moved in, my husband did not put any money in (we were then based in England). Could you tell me where I stand with all this in Scottish law? Can we obtain a divorce without resolving the financial issues completely? And if I continue to pay the mortgage, as well as for any repairs/updating, will this be taken into consideration when the time comes? I would like to remain in the house for the next few years, at least whlist my youngest children are still living at home - I have four children, three of who are still here, the youngest is 11, the second youngest is 21 but he has Asperger's and is also still dependent on me. Only my youngest son is my husband's biological child. Although I can pay the mortgage comfortably, and have never been in arrears, I'm concerned that I would not meet the criteria for obtaining a sizeable new mortgage on my own, especially with so much other debt still outstanding. Is it best to try to delay the divorce until I can afford to get a new mortgage in my name alone? My husband has a low paying job that comes with accomodation so he will not be looking to buy a home in the forseeable future.
Thank you for your question.
Under Scots law yo cannot divorce until all financial matters are resolved, either by agreement or by the court.
You husband is only liable to pay child maintenance for your youngest child. That will be about 15% of his salary but you can use one of the online child maintenance calculators to find out a more exact level of maintenance.
As far as everything else is concerned, the value of everything acquired during the marriage, including the house, falls to be divided fairly, having regards ***** ***** debts, including the mortgage.
In Scots law fair sharing usually means equal sharing and that does apply to the family home irrespective of where the money came from to pay any deposit at the time of purchase. Monies paid by you after the date of separation, such as mortgage, repairs etc would be costs that you would be given credit for in the event of a sale or buy out.
Your husband could insist on the sale of the house in order to realise his share. You could argue that the sale should be deferred given current personal circumstances. Both scenarios at possible and it may be that you can negotiate an agreement, usually done between solicitors with a view to entering into a written contract, called a Minute of Agreement. If negotiations break down then the court can be asked to make orders for financial provision. That however is a very expensive way of proceeding, especially where the net matrimonial assets are limited.
I hope this helps. Please leave a positive response so that I am credited for my time.
JGM and other Scots Law Specialists are ready to help you
Customer: replied 3 years ago.

Thank you for your reply, that's helpful. I just have one more quick question, under Scots law is there any mechanism I can use to postpone the sale of the house until my youngest child is 18, if it comes to that? I've heard various terms, such as consent orders, mentioned in other posts, but I'm not sure if these apply to Scotland or would be relevant in my case.

Sorry, just reread your answer, and I realise that this may be what the Minute of Agreement may be able to do, if it came to it. Many thanks, ***** ***** a clearer idea of how to proceed now.

Yes, that is what the Minute of Agreement would do. There's no such thing as a consent order in Scotland but a Minute of Agreement would deal with that type of issue.
Customer: replied 3 years ago.
I have no further questions at the moment, thank you. I think I've rated and closed this correctly but please let me know if not. :)
Yes you have, many thanks. If you need me again, precede your new question with "ForCustomer